Carol Frances Gowing & Ors v Terence Arthur Ward & Anor

In a probate challenge, testamentary capacity, knowledge and approval, undue influence and fraudulent calumny are determined by evaluating all the evidence. A duly executed will which is rational on its face attracts a presumption of capacity, subject to the objector raising a real doubt. Testamentary capacity remains a question for the court.

Professional preparation and execution by a solicitor create a strong inference of knowledge and approval, but deficiencies in the will-making process must be considered when assessing whether that inference is displaced. Physical frailty and susceptibility to influence do not themselves establish incapacity or undue influence. Testamentary undue influence requires proof that coercion or fraud caused the dispositions, and the burden is on the challenger.

Frederick Ward’s 2018 Will left the residue of his estate equally to his surviving children, Terence Ward and Susan Wiltshire, while making £50 gifts to each grandchild. His five granddaughters, who were the children of his predeceased son, challenged the Will and sought revocation of the grant of probate.

The claimants alleged lack of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny. The central issues were whether Mr Ward understood and approved the 2018 Will and whether it was the product of coercion or fraud.

1. The claim was dismissed. The court found that Mr Ward had testamentary capacity, knew and approved the 2018 Will, and made it as a free agent.
2. Under Banks v Goodfellow (1870) LR 5 QB 549, the testator had to understand the nature and effect of making a will, the extent of the property disposed of, and the claims to which he ought to give effect, without a disorder of mind affecting the disposition. The question was for the court, evaluating all the evidence, rather than for experts.
3. Because the Will was duly executed under section 9 of the Wills Act 1837 and rational on its face, the evidential burden shifted to the claimants to raise a real doubt about capacity. They did not do so. Physical frailty, COPD and a recent urinary infection did not establish confusion, delirium or cognitive impairment at execution.
4. The court accepted that the Will had been professionally prepared, that Mr Ward had reviewed it and that he had confirmed he was satisfied with it. The solicitors’ failure to identify the earlier 2011 Will was a significant procedural omission, but it did not establish incapacity or displace the inference that Mr Ward understood the dispositive provisions.
5. For undue influence, there is no presumption in testamentary cases. The claimant must prove, on the balance of probabilities, coercion which overbore the testator’s volition, or fraud which caused the dispositions. Vulnerability, dependency, trust and confidence, or the defendants’ knowledge of the Will were insufficient without evidence that they caused the testamentary decision.
6. The evidence more probably showed that Mr Ward had become disappointed by reduced contact with the claimants and had independently changed his testamentary intentions. The allegations of knowingly false statements made to procure the Will, and of coercion, were not proved.